Plan Would Allow Paralegals to Practice : Law: They could handle simple matters such as uncontested divorces. Some already do without being regulated, officials say.
The State Bar of California is considering a controversial plan, unique in the nation, that would grant self-employed paralegals a limited, legal right to practice law.
Such so-called “legal technicians,” who operate independent of attorneys, would be authorized to advise clients on such simple matters as uncontested divorces but still could not represent them in court. To guard against the incompetent or unscrupulous, the paralegals for the first time would be subject to state regulation and would have to meet educational standards and pass licensing exams.
Bar officials say no other state has made such a far-reaching attempt to provide a certified, low-cost alternative for people who cannot afford--or do not wish to pay--the higher fees ordinarily charged by a lawyer.
“We can’t ignore the fact that these people are operating today but without any criteria whatever,” said Robin Paige Donoghue, a San Francisco attorney and chair of the Bar Commission on Legal Technicians. “This (proposal) would legitimize much of the current practice but also place some qualifications on it. . . . We’re trying to address the need for affordable legal help.”
Operating with little fanfare, there now are an estimated 500 independent paralegals in California--unlicensed “mini-lawyers” helping people in dissolutions, bankruptcies, adoptions and other mundane but personally essential legal problems.
But these paralegals have been at odds with the legal profession, operating in a gray area that technically puts them at risk of prosecution under vaguely defined, rarely enforced statutes barring the unauthorized practice of law.
The proposal to license and regulate legal technicians, scheduled to go before the governing board of the Bar later this month, is likely to draw fire on several fronts. Some lawyers, of course, may fear losing business--although as Donoghue points out, the people paralegals assist are not likely to go to lawyers anyway.
But critics also express broader concerns, saying the proposed system may end up creating an expensive layer of legal bureaucracy without adequately meeting the needs of low-income people.
“I don’t think the solution to the problem is creating a whole new sub-class of lawyers,” said San Mateo attorney P. Terry Anderlini, former president of the State Bar. “People say that 124,000 lawyers in the state are already too many. . . . What are these mini-lawyers going to do that regular lawyers can’t do?”
Anderlini fears that many matters brought to legal technicians will prove too complex for them to handle--and that they will simply refer clients to a lawyer--at an added cost to the clients.
As an alternative, he favors expanding the use of legal clinics where paralegals or law students--working under the direct supervision of a lawyer--can provide services at reduced prices. The wider distribution of do-it-yourself lawbooks and simplified legal forms could further enable those with uncomplicated problems to go to court without a lawyer or a paralegal, he said.
“At the very least, there ought to be a pilot project first to see whether this proposal really works,” Anderlini said. “Otherwise, we’ll end up with a bureaucracy nobody will be able to dismantle.”
Until the last few years, paralegals had drawn little attention outside legal circles. But by 1985, they were projected by the U.S. Labor Department as America’s fastest-growing profession. Today, there are nearly 100,000 paralegals of all types at work in the country, many of them graduates of college and other training programs approved by the American Bar Assn.
The State Bar commission’s proposal covers only independent, self-employed paralegals working out of their own offices. These practitioners, many of them former legal secretaries, law students or social workers, often draw clients through word of mouth, the yellow pages or referrals by lawyers and legal aid societies. Typically, they would handle an uncomplicated dissolution for up to $250, compared to three times that amount charged by a lawyer.
Other paralegals, not covered under the Bar proposal, work as salaried employees in law firms under the supervision of attorneys--doing research, organizing case files and performing other tasks--or contract to perform services for a lawyer.
Under the proposal, independent paralegals would be allowed to provide assistance in family disputes, bankruptcies and landlord-tenant conflicts. The paralegals would be supervised by the state Department of Consumer Affairs and would have to meet minimum standards of education or experience--and undergo tests of their knowledge of the field. They could give basic legal advice to clients but could not appear in court. And if a matter was too complex, they would be required to refer it to an attorney.
The proposal is set for discussion by the Bar’s Board of Governors on Thursday. The board then may seek public comment on the proposal over a 90-day period. If the plan is eventually approved by the board, the state Supreme Court, as a final authority over the system, would be required to change court rules to officially permit non-lawyers to practice law. And the Legislature would have to change the law to allow the Department of Consumer Affairs to administer the system.
A more expansive plan for non-lawyer legal services, authorizing paralegals to handle certain matters after paying only a $25 licensing fee, was proposed last year but ran into stiff opposition within the Bar. The new proposal evolved after a lengthy study by a 10-member commission of lawyers, judges, paralegals and consumer representatives.
The commission, trying to assess the need for paralegals, found large numbers of people were going to court without lawyers in bankruptcies, family law and landlord-tenant disputes. In one month, for instance, in Los Angeles Municipal Court, 21% of the plaintiffs and 45% of the defendants in landlord-tenant cases proceeded without attorneys.
The commission cited a study by UC Irvine showing that the Legal Aid Society of Orange County was forced to turn away 6,000 people in 1987--only 6% of whom could afford to pay the $135 to $200-an-hour fees charged by local lawyers.
By contrast, the commission found legal technicians charging no more than $100 and most less than $50 an hour in landlord-tenant disputes. In divorces and bankruptcies, most paralegals billed by the case--rather than by the hour--and charged a flat fee of $200 or less.
The commission, however, also concluded that the lack of regulation of paralegals had brought some harm to the public. Surveys of local bar associations, judges and legal aid groups reported instances of fraud, inadequate advice and overlooked legal issues, the commission said. And yet, 76% of one survey group who used legal technicians said they were satisfied and would seek such service again.
The commission’s proposal thus far has drawn a mixed reception from independent paralegals themselves. Some, such as Virginia Simons, who operates TLC Divorce Services in Bakersfield, see a need for regulation. “The majority of paralegals are very legitimate and very sincere,” Simons said. “But there are some who shouldn’t be out there and that’s where licensing would give consumers more protection.”
Catherine Jermany of Sonoma, executive director of the National Assn. for Independent Paralegals, opposes the Bar plan, saying it would over-regulate the field, require more specialization and expertise than necessary and create a “second-tier” legal service for the poor.
“We’re not interested in destroying the legal system but in making it more accessible,” Jermany said. “We see this proposal as another layer of restriction.”
Some consumer activists are skeptical as well.
Eric D. Vega of Sacramento, the California representative for Help Abolish Legal Tyranny, a nationwide group promoting legal self-help, calls the proposal a step in the right direction. But he fears that it still might create a group of “baby lawyers,” overly influenced by the legal profession through the supervisory authority of the Supreme Court.
Instead, Vega favors less restrictive legislation proposed by state Sen. Robert Presley (R-Riverside) that would repeal laws banning the unauthorized practice of law and allow legal technicians to practice in 14 areas of law--ranging from immigration and naturalization to corporate and business law. The legislation will be considered next year.
The bill, backed by a coalition of consumer, community and civil rights organizations, would still bar non-lawyers from appearing in court and from portraying themselves as lawyers. Under the bill, they would have to pass a test and be regulated by an independent board in the state Department of Consumer Affairs.
“Lawyers are monopolizing legal services in this country,” Vega said. “What we’re proposing is revolutionary--a basic, fundamental reform. . . . We want to allow competent people to help those who haven’t had adequate access to the legal system.”
STATE BAR PARALEGAL PROPOSAL Currently, independent paralegals offer limited, low-cost legal services in divorces, bankruptcies and other uncomplicated matters. Although they are barred by law from giving advice or otherwise practicing law, they are rarely prosecuted.
Under a proposal being considered by the State Bar, these paralegals, also known as “legal technicians,” would be:
* Authorized for the first time to give basic advice and assist clients in bankruptcy, family law and landlord-tenant conflicts.
* Still prohibited from appearing in court.
* Required to meet minimum educational or experience standards and pass a state-administered test to obtain a license to practice.
* Subject to professional discipline or other punishment for violation of regulations or other misconduct.